Less than
two hours after Gov. Jerry Brown signed California’s landmark new “no cash
bail” law, the Republican candidate to become the state’s top lawyer pronounced
it illegal, unconstitutional.

This
came even before the billion-dollar bail bond industry – likely to become
extinct under the new law – began a campaign to qualify a 2020 referendum to
cancel the measure.

Here’s what the GOP’s attorney
general candidate Steven Bailey quickly said: “As recently upheld by the 11th
Circuit (federal) Court of Appeals, the right to bail is a constitutional right
and replacing it with problematic ‘risk assessment’ instruments denounced by
over 115 civil rights groups (would) threaten the fundamental principles of
freedom and equal justice under the law.”

Bailey, a retired El Dorado
County Superior Court judge, followed one line of attack opponents of “no cash
bail” will use against the new system, due to take effect one year from this
week unless the referendum qualifies for the ballot and causes at least a
temporary suspension.

Other arguments against the
new law will surely come from bail bondsmen, who have thrived for centuries
under the current system, giving rise to countless bounty hunters like the
legendary Duane (Dog) Chapman, subject of a long-running reality TV show.

Under
the current system, criminal defendants lacking the full amount of their bail
can often pay a bail bondsman 10 percent of the amount in cash, with the
bondsman providing the rest. Bounty hunters enter when defendants jump bail and
the 90 percent paid by bail bondsmen gets forfeited.

Also, many defendants put up
homes and other property to secure their bail, while others borrow from friends
and relatives.

If
opponents of eliminating cash bail repeat Bailey’s claim that it is a
constitutional right, they will almost certainly lose in every court. For the
Eighth Amendment says nothing about a right to cash bail, only that it cannot
be “excessive.” A system evaluating flight risk and potential danger to the
public does not amount to a demand for large sums of money, thus appearing to
pass constitutional muster.

Nor did
the 11th Circuit decide just as Bailey claimed. Instead, the
Atlanta-based court ruled valid in mid-summer a local law in Calhoun, GA
guaranteeing a bail hearing within 48 hours of arrest. That doesn’t say cash
bail is a must.

So it
would likely be a mistake for other lawyers to follow the implicit advice of
the attorney general hopeful.

In
fact, the idea of ending cash bail has been around for decades. Brown first
advocated it in his 1979 State of the State speech to the Legislature, almost
forty years before making it reality.

“Today,”
he said, “California reforms its bail system so that rich and poor alike are
treated fairly.” His comment echoed arguments of advocates who long maintained
the rich easily go free while awaiting trial, but when the poor face similar
charges, they often languish months or years away from home and family.

Amplified
Lt. Gov. Gavin Newsom, the Democratic candidate for governor, “A person’s
checking account balance should never determine how they are treated under the
law. Cash bail criminalizes poverty…”

While
cash resources will supposedly no longer have a role in pre-trial release,
critics of the new law maintain it gives too much power to judges, empowered to
order accused persons held however long it takes to adjudicate their cases.

That
means money will still have a role, even if it’s used only to hire competent
and influential lawyers. The indigent accused, often represented by overworked
public defenders or court-appointed attorneys, won’t be able to marshal the
same kind of campaign for freedom as the wealthy.

In a
sense, the new system will be a lot like the current post-verdict sentencing
system, where court officials recommend a sentence and generally see their
recommendations followed, with lawyers sometimes able to influence their findings.

This
may not be fair, but it has survived every constitutional challenge. Most
likely, so will California’s new no cash bail system.

-30-

Email Thomas Elias at
tdelias@aol.com. His book, "The Burzynski Breakthrough: The Most Promising
Cancer Treatment and the Government’s Campaign to Squelch It," is now
available in a soft cover fourth edition. For more Elias columns, visit www.californiafocus.net

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About Me

Thomas Elias writes the syndicated California Focus column, appearing twice weekly in 88 newspapers around California, with circulation over 2.2 million.
He has won numerous awards from organizations like the National Headliners Club, the California Newspaper Publishers Association, the Los Angeles Press Club, and the California Taxpayers Association. He has been nominated three times for the Pulitzer Prize in distinguished commentary.
Elias is the author of two books, "The Burzynski Breakthrough: The Most Promising Cancer Treatment and the Government's Campaign to Squelch It" (now in its third edition; also published in Japanese and recently optioned for a television movie) and "The Simpson Trial in Black and White," co-authored with the late Dennis Schatzman.